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EPA Memoranda Provide Opportunities to Voice Concerns Regarding Superfund Program

Client Updates

In May 2017, Environmental Protection Agency (“EPA”) Administrator Pruitt issued two memoranda aimed at prioritizing and streamlining the Superfund program administered under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The Administrator’s renewed focus on the Superfund program provides industry members with an excellent opportunity to voice specific, programmatic concerns with the Agency’s current Superfund policies and practices.

First, on May 9, 2017, Administrator Pruitt issued a memorandum which revoked the delegation of authority to the EPA regional offices over remedies estimated to cost $50 million or more. Instead, the authority to select remedies for such sites shall now be retained by the Administrator in an effort to “improve remedy selection” and “enhanc[e] consistency in remedy selection across states and the regions.”

Second, on May 22, 2017, Administrator Pruitt established a governmental task force to identify steps the Agency can take to “[s]treamline and improve the efficiency and efficacy of the Superfund program.” The task force is led by Albert Kelly, senior advisor to the Administrator, and will be staffed by personnel from various EPA offices. Within 30 days, the task force is directed to recommend actions the Agency can take to hasten cleanup at Superfund sites, implement various cost-saving and financing measures, and promote consistency at Superfund sites across the country, and use risk-management principles in the selection of remedies.

Although industry members are not represented on the task force, this is an opportunity for interested parties to weigh in on programmatic or policy changes that would streamline the Superfund program and expedite the cost-effective cleanup of sites. Below are examples of some areas for improvement we have identified in current Superfund policies and practices:

  • Revision of the current model Agreed Orders on Consent to, for example, streamline procedural steps, require timely EPA decision-making, and enhance dispute resolution;
  • Better utilization by EPA of its own guidance across all Regions, such as guidance for sediment site cleanups and the application of risk reduction and remedial action goals that are actually achievable;
  • Streamlining the Technical Impracticability waiver program, to potentially allow for quicker approvals when sites present certain specified characteristics;
  • Better guidance from EPA on groundwater cleanup drivers; and
  • Optimization of site cleanups and development of exit strategies.

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